The U.S. Supreme Court won’t block a Texas law that allows private individuals to sue to enforce a ban on abortion after about six weeks of pregnancy – before many women are even aware they’re pregnant. The law went into effect Wednesday, September 1. 

It’s the most restrictive abortion law in the country, imposing a huge burden on women without the means or money to travel to another state where later abortions are legal.

It’s also a sign that the Republican-appointed justices, who now hold six of nine seats on the Court, are ready to overturn the Court’s 1973 decision in Roe v. Wade, striking down anti-abortion laws across the nation as violating a woman’s right to privacy under the fourteenth amendment to the Constitution.

Last week the Court held that Biden’s moratorium on evictions was illegal. A few days before, it refused to stay a lower court decision that people seeking asylum at the southern border must remain in Mexico until their cases are heard – often subjecting them to great hardship or violence.

What links these cases? Cruelty toward the powerless.

I remember a very different Supreme Court which I had the honor of arguing cases before almost fifty years ago. It embodied the idea that the fundamental role of the Court is to balance the scales in favor of those who are powerless. The other two branches of government cannot be relied on to do this.

Even Nixon appointees Harry Blackmun, Lewis Powell, and Warren Burger understood that role. Blackmun wrote the Court’s decision in Roe v. Wade, and Powell and Burger joined him, as did four Democratic appointees to the Court – William O. Douglas, Thurgood Marshall, William Brennan, and Potter Stewart.

The cases I argued were insignificant. I was a rookie in the Justice Department who was given either sure winners or sure losers to argue. But I vividly recall Douglas, who had recently suffered a stroke and was in obvious discomfort, looking sharply at me as I made my arguments.

I was awed. Here was the justice who wrote the 1965 decision in Griswold v. Connecticut, finding that a constitutional right to privacy forbids states from banning contraception. The man who argued the Vietnam war was illegal and issued an order that temporarily blocked sending Army reservists to Vietnam. The justice who wrote in the 1972 case Sierra Club v. Morton that any part of nature feeling the destructive pressure of modern technology should have standing to sue in court – including rivers, lakes, trees and even the air – because if corporations (which are legal fictions) have standing, shouldn’t the natural world?

Sitting not far away from him was Thurgood Marshall – who succeeded in having the Supreme Court declare segregated public schools unconstitutional in the landmark 1954 case Brown v. Board of Education, and who did more than person then alive to break down the shameful legal edifice of Jim Crow.

Today’s Supreme Court majority is a group of knee-jerk conservatives whose intellectual leader (to the extent they have one) is Samuel Alito, perhaps the most conceptually rigid and cognitively dishonest justice since Chief Justice Roger Taney.

Five of today’s Supreme Court majority were appointed by presidents who lost the popular vote; three of them by a president who instigated a coup against the United States.

The authority of the Supreme Court derives entirely from Americans’ confidence and trust in it. As Alexander Hamilton wrote in The Federalist Papers 78, the judiciary has “neither the sword” (the executive branch’s power to compel action) “nor the purse” (the Congress’s power to appropriate funds).

The Court I was privileged to argue before almost fifty years ago had significant authority. It protected the less powerful with arguments that resonated with the core moral values of the nation. Americans didn’t always agree with its conclusions, but they respected it.

Today’s cruel and partisan Supreme Court is squandering what remains of its authority. It is also imposing unnecessary suffering on those least able to bear it.

Barring a miracle, Amy Coney Barrett will be confirmed on Monday as the ninth justice on the U.S. Supreme Court. 

This is a travesty of democracy.

The vote on Barrett’s confirmation will occur just eight days before Election Day. By contrast, the Senate didn’t even hold a hearing on Barack Obama’s nominee, Merrick Garland, who Obama nominated almost a year before the end of his term. Majority leader Mitch McConnell argued at the time that any vote should wait “until we have a new president.”

Barrett was nominated by a president who lost the popular vote by nearly 3 million ballots, and who was impeached by the House of Representatives. When Barrett joins the court, five of the nine justices will have been appointed by presidents who lost the popular vote.

The Republican senators who will vote for her represent 15 million fewer Americans than their Democratic colleagues.

Once on the high court, Barrett will join 5 other reactionaries who together will be able to declare laws unconstitutional, for perhaps a generation.

Barrett’s confirmation is the culmination of years in which a shrinking and increasingly conservative, rural, and white segment of the U.S. population has been imposing its will on the rest of America. They’ve been bankrolled by big business, seeking lower taxes and fewer regulations.

In the event Joe Biden becomes president on January 20 and both houses of Congress come under control of the Democrats, they can reverse this power grab. It may be the last chance – both for the Democrats and, more importantly, for American democracy.

How?

For starters, increase the size of the Supreme Court. The Constitution says nothing about the number of justices. The court changed size seven times in its first 80 years, from as few as five justices under John Adams to ten under Abraham Lincoln.

Biden says if elected he’ll create a bipartisan commission to study a possible court overhaul “because it’s getting out of whack.” That’s fine, but he’ll need to move quickly. The window of opportunity could close by the 2022 midterm elections.

Second, abolish the Senate filibuster. Under current rules, 60 votes are needed to enact legislation in that chamber. This means that if Democrats win a bare majority there, Republicans could block any new legislation Biden hopes to pass.

The filibuster could be ended with a rule change requiring a mere 51 votes. There’s growing support among Democrats for doing this if they gain that many seats. During the campaign, Biden acknowledged that the filibuster has become a negative force in government.

The filibuster is not in the Constitution, either.

The most ambitious structural reform would be to rebalance the Senate, and thereby the Electoral College. 

For decades, rural states have been emptying as the U.S. population has shifted to vast megalopolises. The result is a growing disparity in representation, especially of nonwhite voters.

For example, both California, with a population of 40 million, and Wyoming, whose population is 579,000, get two senators. If population trends continue, by 2040 some 40 percent of Americans will live in just five states, and half of America will be represented by 18 Senators, the other half by 82.

This distortion also skews the Electoral College, because each state’s number of electors equals its total of senators and representatives. Hence, the recent presidents who have lost the popular vote.  

This growing imbalance can be remedied by creating more states representing a larger majority of Americans. At the least, statehood should be granted to Washington, D.C. And given that 1 out of 8 Americans now lives in California – whose economy, if it were a separate country, would be the ninth largest in the world – why not split it into a North and South California?

The Constitution is also silent on the number of states.

Those who recoil from structural reforms such as the three I’ve outlined warn that Republicans will retaliate when they return to power.

That’s rubbish. Republicans have already altered the ground rules. In 2016, they failed to win a majority of votes cast for the House, Senate, or the presidency, yet secured control over all three.

Barrett’s ascent is the latest illustration of how grotesque the Republican power grab has become, and how it continues to entrench itself ever more deeply. If not reversed soon, it will be impossible to remedy.

What’s at stake is not partisan politics. It is representative government. If Democrats get the opportunity, they must redress this growing imbalance – for the sake of democracy.  

Trump and many Republicans insist that the decisions whether to wear a mask, go to a bar or gym, or work or attend school during a pandemic should be personal. Government should play no role.

Yet they also insist that what a woman does with her own body or whether same-sex couples can marry should be decided by government.

It’s a tortured, topsy-turvy view of what’s public and what’s private. Yet it’s remarkably prevalent as the pandemic resurges and as the Senate considers Trump’s pick for the Supreme Court.

By contrast, Joe Biden has wisely declared he would do “whatever it takes” to stop the pandemic, including mandating masks and locking down the entire economy if scientists recommend it. “I would shut it down; I would listen to the scientists,” he said.

And Biden wants to protect both abortion and same-sex marriage from government intrusion. In 2012 he memorably declared his support of the latter before even Barack Obama did so.

Trump’s opposite approaches, discouraging masks and other Covid restrictions while seeking government intrusion into the most intimate decisions anyone makes, have become the de facto centerpieces of his campaign.

At his “town hall” on Thursday night, Trump falsely claimed that most people who wear masks contract the virus.

He also criticized governors for ordering lockdowns, adding that Michigan Governor Gretchen Whitmer “wants to be a dictator.“ (He was speaking just one week after state and federal authorities announced they had thwarted an alleged plot to kidnap and possibly kill Whitmer.)

Attorney General William Barr – once again contesting Trump for the most wacky analogy – has called state lockdown orders the “greatest intrusion on civil liberties in American history” since slavery.

Yet at the very same time Trump and his fellow-travelers defend peoples’ freedom to infect others or become infected with Covid-19, they’re inviting government to intrude into the most intimate aspects of personal life.

Trump has promised that the Supreme Court’s 1973 Roe v. Wade decision, establishing a federal right to abortion, will be reversed “because I am putting pro-life justices on the court.”

Much of controversy over Trump’s nomination of Amy Coney Barrett to the Supreme Court hinges on her putative willingness to repeal Roe.

While an appeals court judge, Barrett ruled in favor of a law requiring doctors to inform the parents of any minor seeking an abortion, without exceptions, and also joined a dissenting opinion suggesting that an Indiana state law requiring burial or cremation of fetal remains was constitutional.

A Justice Barrett might also provide the deciding vote for reversing Obergefell v. Hodges, the 2015 Supreme Court decision protecting same-sex marriage. Only three members of the majority in that case remain on the Court.

Barrett says her views are rooted in the “text” of the Constitution. That’s a worrisome omen given that earlier this month Justices Clarence Thomas and Samuel Alito opined that the right to same-sex marriage “is found nowhere in the text” of the Constitution.

What’s public, what’s private, and where should government intervene? The question suffuses the impending election and much else in modern American life.

It is nonsensical to argue, as do Trump and his allies, that government cannot mandate masks or close businesses during a pandemic but can prevent women from having abortions and same-sex couples from marrying.

The underlying issue is the common good, what we owe each other as members of the same society. During wartime, we expect government to intrude on our daily lives for the common good: drafting us into armies, converting our workplaces and businesses, demanding we sacrifice normal pleasures and conveniences.  During a pandemic as grave as this one we should expect no less intrusion, in order that we not expose each other to the risk of contracting the virus.

But we have no right to impose on each other our moral or religious views about when life begins or the nature and meaning of marriage. The common good requires instead that we honor such profoundly personal decisions.

Public or private? We owe it to each other to understand the distinction.

How to Beat Republicans at Their Own Game

I keep hearing from progressives who lament that even if Biden wins, Trump and McConnell have tilted the playing field forever.

They point to McConnell’s rush to confirm Trump’s Supreme Court nominee Amy Coney Barrett, after blocking President Obama’s nominee for 293 days because it was “too close” to the next election. And to the fact that Republicans in the Senate represent 11 million fewer Americans than their Democratic counterparts, and are still able to confirm a Supreme Court justice and entrench minority rule.

But that’s not the end of the story.

The Constitution doesn’t prevent increasing the size of the Supreme Court in order to balance it. Or creating a pool of circuit court justices to cycle in and out of it. In fact, the Constitution says nothing at all about the size of the Court.

I also hear progressives express outrage that this imbalance of power exists in the Electoral College, which made Trump president in 2016 despite having lost the popular vote by 3 million, and made George W. Bush president in 2000, despite losing the popular vote by about half a million.

But this doesn’t have to be the end of the story, either. From granting statehood to Washington, D.C. to abolishing the Electoral College, nothing should be off the table to strengthen our democracy. 

There is no reason to accept the structure of our democracy when it repeatedly empowers a ruthless minority to impose its will over the majority. Or when it denies full representation to U.S. citizens, as is the case for Puerto Rico, which absolutely deserves self-determination.

Pay no mind to those who argue that these moves would be unfair abuses of power. Unfair, after what Trump and McConnell have done?

Abuses of power? When Trump is urging his followers to intimidate Biden voters? When he won’t even commit to a peaceful transition of power and refuses to be bound by the results? When he’s already claiming the election is rigged against him and will be fraudulent unless he wins? When he’s threatening to have states that he loses declare the votes invalid and certify their own slate of Trump electors in January?

I’m sorry. There’s nothing unfair about making our democracy fairer. There’s no abuse of power in remedying blatant abuses of power.

People in public life tend to fall into one of two broad categories – those who are motivated by principle, and those motivated by power.

Justice Ruth Bader Ginsburg, who died Friday night at the age of 87, exemplified the first.

When he nominated her in 1993, Bill Clinton called her “the Thurgood Marshall of gender-equality law,” comparing her advocacy and lower-court rulings in pursuit of equal rights for women with the work of the great jurist who advanced the cause of equal rights for Black people. Ginsburg persuaded the Supreme Court that the 14th Amendment’s guarantee of equal protection applied not only to racial discrimination but to sex discrimination as well.

For Ginsburg, principle was everything – not only equal rights, but also the integrity of democracy. Always concerned about the consequences of her actions for the system as a whole, she advised young people “to fight for the things you care about but do it in a way that will lead others to join you.”

Mitch McConnell, the Senate majority leader, exemplifies the second category. He couldn’t care less about principle. He is motivated entirely by the pursuit of power.

McConnell refused to allow the Senate to vote on President Barack Obama’s nominee to the Supreme Court, Merrick Garland, in March, 2016 – almost a year before the end of Obama’s term of office – on the dubious grounds that the “vacancy should not be filled until we have a new president.”

McConnell’s move was a pure power grab. No Senate leader had ever before asserted the right to block a vote on a president’s nominee to the Supreme Court.

McConnell’s “principle” of waiting for a new president disappeared Friday evening, after Ginsburg’s death was announced.

Just weeks before one of the most consequential presidential elections in American history, when absentee voting has already begun in many states (and will start in McConnell’s own state of Kentucky in 25 days), McConnell announced: “President Trump’s nominee will receive a vote on the floor of the United States Senate.”

This is, after all, the same Mitch McConnell who, soon after Trump was elected, ended the age-old requirement that Supreme Court nominees receive 60 votes to end debate and allow for a confirmation vote, and then, days later, pushed through Trump’s first nominee, Neil Gorsuch.

Ginsburg and McConnell represent the opposite poles of public service today. The distinction doesn’t depend on whether someone is a jurist or legislator – I’ve known many lawmakers who cared more about principle than power, such as the late congressman John Lewis. It depends on values.

Ginsburg refused to play power politics. As she passed her 80th birthday, near the start of Obama’s second term, she dismissed calls for her to retire in order to give Obama plenty of time to name her replacement, saying she planned to stay “as long as I can do the job full steam,” adding “There will be a president after this one, and I’m hopeful that that president will be a fine president.”

She hoped others would also live by principle, including McConnell and Trump. Just days before her death she said, “My most fervent wish is that I will not be replaced until a new president is installed.”

Her wish will not be honored.

If McConnell cannot muster the senate votes needed to confirm Trump’s nominee before the election, he’ll probably try to fill the vacancy in the lame-duck session after the election. He’s that shameless.

Not even with Joe Biden president and control over both the House and Senate can Democrats do anything about this – except by playing power politics themselves: expanding the size of the court or restructuring it so justices on any given case are drawn from a pool of appellate judges.

The deeper question is which will prevail in public life: McConnell’s power politics or Ginsburg’s dedication to principle?

The problem for America, as for many other democracies at this point in history, is this is not an even match. Those who fight for power will bend or break rules to give themselves every advantage. Those who fight for principle are at an inherent disadvantage because bending or breaking rules undermines the very ideals they seek to uphold.

Over time, the unbridled pursuit of power wears down democratic institutions, erodes public trust, and breeds the sort of cynicism that invites despotism.

The only bulwark is a public that holds power accountable – demanding stronger guardrails against its abuses and voting power-mongers out of office.

Ruth Bader Ginsburg often referred to Justice Louis Brandeis’s famous quote, that “the greatest menace to freedom is an inert people.” Indeed.

President-elect Donald Trump is accusing President Obama of putting up “roadblocks” to a smooth transition. 

In reality, I think President Obama has been too cooperative with Trump. 

In the waning days of his administration, I’d recommend Obama take the following last stands:

1. Name Merrick Garland to the Supreme Court. Article II, Section 2 of the Constitution gives the President power to fill any vacancy during the recess of the Senate. The Supreme Court is no exception: Justice William Brennan began his Court tenure with a recess appointment in 1956. Any appointments made this way expire at the end of the next Senate session. So if Obama appointed Garland on January 3, the appointment would last until December 2017, the end of the first session of the 115th Congress.

2. Use his pardoning authority to forgive “Dreamers.” With a flick of his pen, Obama could forgive the past and future civil immigration offenses of the nearly 750,000 young people granted legal status under the Deferred Action for Childhood Arrivals program. Without an immigration offense on their records, they could more easily apply for legal status.

3. Impose economic sanctions on Russia for interfering in the 2016 presidential election – including blocking all loans or investments by Russian nationals in all real estate ventures in the United States.

4. Protect the civil service from the Trump transition. Instruct all cabinet departments and agencies not to respond to any Trump transition team inquiry that might intimidate any individual members of the civil service.

5. Issue an executive order protecting the independence of all government fact-finding agencies: Included would be the Bureau of Labor Statistics, the Bureau of Economic Analysis, the Bureau of Justice Statistics, National Center for Education Statistics, National Center for Health Statistics, National Center for Science and Engineering Statistics, U.S. Census Bureau, U.S. Energy Information. (Trump could repeal the order, but that would be politically costly.)

6. Issue an executive order protecting the independence of all Inspectors General in every cabinet department and agency. (Ditto.)

7. Issue a report on the outcomes of Trump’s and Republican’s proposed tax cuts and benefit cuts, showing which state’s citizens will most benefit from tax cuts going to the richest Americans and largest corporations (overwhelmingly the citizens of blue states), and which will lose the most from cuts in Medicaid and repeal of Obamacare (overwhelmingly red states), along with estimates of such gains.

TAKE BACK THE SENATE!

Amid all the focus on the presidential race it’s also important to keep in mind Democrats have a fighting chance to take back the Senate in November. There are at least 12 races in play. Win five, and Democrats are in control regardless of the outcome of the presidential election.

Many of of the Democrats on the ballot this year are progressives who have been fighting to raise the minimum wage, expand Social Security, provide paid sick leave and paid parental leave. Many are women and people of color who will make the Senate look more like the rest of America.

Win five of these races and we’d have a chance for a Supreme Court that would prioritize the rights and needs of average Americans rather than big corporations and overturn Citizens United!

Win five of these races and we’d put Senate oversight of the government back into the hands of people who care that government actually works.

We’d strengthen the ranks of progressives like Elizabeth Warren, Bernie Sanders, Jeff Merkley, Sherrod Brown, and others – who we are counting on in the fight to get big money out of politics, reduce income and wealth inequality, confront devastating climate change, and push a progressive foreign policy.

A Democratic Senate would also give us a line of defense, a countervailing power in budget showdowns, foreign policy lock downs, and threatened government shutdowns.

If Hillary Clinton becomes president, a Democratic Senate will help push her positive agenda, and hold her accountable if she veers away from it. If Donald Trump becomes president – well, let’s just say we’ll need a Democratic Senate more than ever.

So please remember what’s at stake. And Vote on November 8th!

The fact that Americans are segregating ever more by income is exacerbating racial divisions.  

Thirty years ago most cities contained a broad spectrum of residents from wealthy to poor. Today, entire cities are mostly rich  (San Francisco, San Diego, Seattle) or mostly impoverished  (Detroit, Baltimore, Philadelphia).

Because a disproportionate number of the nation’s poor are black or Latino, we’re experiencing far more segregation geographically. 

Which is why, for example, black students are more isolated today than they were 40 years ago. More than 2 million black students now attend schools where 90 percent of the student body is minority.

According to a new study by Stanford researchers, even many middle-income black families remain in poor neighborhoods with low-quality schools, fewer parks and playgrounds, more crime, and inadequate public transportation. Blacks and Hispanics typically need higher incomes than whites in order to live in affluent neighborhoods.

To some extent, this is a matter of choice. Many people prefer to live among others who resemble them racially and ethnically.

But some of this is due to housing discrimination. For example, a 2013 study by the Department of Housing and Urban Development found that realtors often show black families fewer properties than white families possessing about the same income and wealth.

The income gap between poor minority and middle-class white communities continues to widen. While the recovery has boosted housing prices overall, it hasn’t boosted them in poor communities.

That’s partly because bank loan officers are now more reluctant to issue mortgages on homes in poor neighborhoods – not because lenders intend to discriminate but because they see greater risks of falling housing values and foreclosures.

But this reluctance is a self-fulfilling prophecy. It has reduced demand for homes in such areas – resulting in more foreclosures and higher rates of vacant and deteriorating homes. The result: further declines in home prices.  

As prices drop, even homeowners who have kept current on their mortgage payments can’t refinance to take advantage of lower interest rates.

Others who owe more on their homes than their homes are worth have simply stopped maintaining them. In many poor communities, this has caused the housing stock to decline further, and home prices to follow.

Adding to the downward spiral is the fiscal reality that lower housing values mean less revenue from local property taxes. This, in turn, contributes to worsening schools, fewer police officers, and junkier infrastructure –accelerating the downward slide.

All of which explains why housing prices in poor neighborhoods remain about 13 percent below where they were before the recession, even though prices in many upscale neighborhoods have fully rebounded.  

And why about 15 percent of the nation’s homes worth less than $200,000 are still underwater while just 6 percent of homes worth more than $200,000 are.

Worse yet for poor communities, most of America’s new jobs are being created in areas where housing already is pricy, while fewer jobs are emerging in places where housing is cheapest.

The toxic mixture of housing discrimination, racial segregation over wide swathes of metropolitan areas, and low wages and few jobs in such places, has had long-term effects.

A Harvard study released in May suggests just how long. The study tracked several million children since 1980s.

It found that young children whose families had been given housing vouchers allowing them to move to better neighborhoods were more likely to do better in later life – attend college and get better jobs – than those whose families hadn’t received the vouchers.

The study points to one solution: housing vouchers that help lower-income families move into better neighborhoods.

It also suggests that federal tax credits to encourage developers to build housing for the poor should be used in racially-integrated communities, rather than mostly in poor ones.

If we want to reverse the vicious cycle of economic apartheid in America, that decision offers an important starting place. 

CONGRESS began its summer recess last week and won’t reconvene until after Labor Day. You’d be forgiven for not noticing a difference. With just 15 bills signed into law so far this year, the 113th Congress is on pace to be the most unproductive since at least the 1940s.

But just because the legislature has ceased to function doesn’t mean our government has. Political decision making has moved to peripheral public entities, where power is exercised less transparently and accountability to voters is less direct. What we’re losing in the process isn’t government — it’s democracy.

Take the Federal Reserve. Absent any Congressional legislation to speak of — no short-term spending to increase job growth, no long-term plan to reduce the budget deficit — the nation’s central bank has been forced to do all the heavy lifting with the economy. The $85 billion of bonds it buys each month is now the main form of government stimulus to the economy as well as the linchpin of continued job growth. Congress’s inability to pass effective fiscal policy means that the Fed’s monetary policy, to keep long-term interest rates as low as possible, has become the only game in town for boosting private spending and investment.

But the strategy also poses serious risks: asset bubbles, if borrowers use the cheap money to speculate; bond collapses, if the Fed slows its bond buying too quickly and spooks the market; and inflation, if low interest rates cause buyers and sellers to expect prices to rise. It could also increase income inequality, by giving wealthy investors a cheap source of funds to expand their portfolios. Forcing the Fed to become the sole decision maker on the economy is also why the selection of a new Fed chairman has become so important — even more important than it ought to be.

Congress’s paralysis has also encouraged the Supreme Court to enter the political fray. Normally the judicial activism of recent years might be checked by Congressional action in response. But not now. Justice Anthony M. Kennedy’s opinion for the majority in the 2010 “Citizens United” case, which struck down limits on corporate campaign contributions, rested partly on the presumption that Congress would require corporations to disclose their political expenditures. But no bill requiring full disclosure has stood a chance of making it through the quagmire.

The court’s decision this summer in “Shelby County v. Holder” handed Congress the task of coming up with a new, updated formula for deciding which states and localities need permission from the Justice Department, under the Voting Rights Act, to make changes to their election processes. But legislative paralysis makes the passage of any new formula highly unlikely. Seen in this light, Chief Justice John G. Roberts Jr.’s deciding vote last year to uphold the Affordable Care Act probably reflected his reasonable fear that the court would otherwise be viewed, not unfairly, as just another political battleground.

Or consider climate change. It’s a public debate the nation briefly embarked on in the 2008 presidential race, when John McCain and Barack Obama presented different plans for cap-and-trade systems. Naturally, gridlock in Congress put an end to it. After the election, Mr. McCain backed off any cap-and-trade plan, and the two parties have been at loggerheads over the environment ever since.

The issue ultimately lost the spotlight to a debate over Mr. Obama’s choice for administrator of the Environmental Protection Agency, Gina McCarthy, who is expected to use the E.P.A.’s authority under the Clean Air Act to regulate the carbon emissions of power plants; and to a Congressional showdown, motivated in part by Mr. Obama’s E.P.A. appointment, over the use of the filibuster on presidential nominees.

Mr. Obama won the skirmish and got his administrator, but don’t expect much public deliberation over carbon emissions from here on. The E.P.A. will handle the issue through regulatory rule making, mostly unseen by Congress and the public.

A final displacement of national politics has been onto state governments, now grappling with everything from undocumented immigrants and gun control to gay marriage and abortion. While many political matters should be left to the states, these cry out for federal standards because of the relative ease with which undocumented immigrants, gun sellers, gay couples and women seeking abortions can transport themselves to more accommodating jurisdictions – depending, of course, on their pocketbooks. 

What’s more, these institutions – the Fed, the Supreme Court, giant regulatory agencies like the EPA, and the states – aren’t even understood by the public to be making political decisions with national implications. Media coverage tends to be narrowly drawn for insiders — macroeconomists, constitutional scholars, E.P.A. watchers, the residents of a particular state — or trivialized for outsiders: Should the next Fed chief be female? Are Justices Antonin Scalia and Clarence Thomas too openly partisan? Is Ms. McCarthy too much of a firebrand? Are “red” states diverging from “blue” states?

The Republican right — mostly new House members who are supported by the Tea Party and who are in open rebellion against the rest of the right — are probably pleased with the gridlock in Congress. They would like nothing better than to stop the federal government from functioning. But they may not fully grasp that their efforts have only shifted power elsewhere in the system.

Some of the institutions gaining power may be making decisions consistent with conservative values: the Supreme Court and some state governments, for instance. But hardly all (the Fed and the E.P.A.).

In any event, it’s bizarre that a self-styled populist insurrection would end up making our government less accountable to the people. But that’s exactly what it’s done. What’s really gridlocked now is democracy.

[This appeared in the New York Times of 8/14/13]

In order to fully understand what the five Republican appointees on the Supreme Court have been up to when they make decisions that affect our democracy, as they did last week on voting rights, you need to understand what the Republican Party has been up to. 

The modern GOP is based on an unlikely coalition of wealthy business executives, small business owners, and struggling whites. Its durability depends on the latter two categories believing that the economic stresses they’ve experienced for decades have a lot to do with the government taking their money and giving it to the poor, who are disproportionately black and Latino.

The real reason small business owners and struggling whites haven’t done better is the same most of the rest of America hasn’t done better: Although the output of Americans has continued to rise, almost all the gains have gone to the very top. 

Government is implicated, but not in the way wealthy Republicans want the other members of their coalition to believe. Laws that the GOP itself championed (too often with the complicity of some Democrats) have trammeled unions, invited outsourcing abroad, slashed taxes on the rich, encouraged takeovers, allowed monopolization, reduced the real median wage, and deregulated Wall Street.

Four decades ago, the typical household’s income rose in tandem with output. But since the late 1970s, as these laws took hold, most Americans’ incomes have flattened. Had the real median household income continued to keep pace with economic growth it would now be almost $92,000 instead of $50,000. 

Obviously, wealthy Republicans would rather other members of their coalition not know any of this – including, especially, their role in making it happen. Their nightmare is small-business owners and struggling whites joining with the poor and the rest of the middle class to wrest economic power away. So they’ve created a convenient scapegoat in America’s minority underclass, along with a government that supposedly taxes hardworking whites to support them.  

This is where the five Republican appointees to the Supreme Court have played, and continue to play, such an important role. 

First, wealthy Republicans have to be able to spend as much money as possible to bribe lawmakers to do their bidding, tell their version of history, and promulgate several big lies (the poor are “takers not makers,” government keeps them “dependent,” the wealthy are “job-creators” so cutting their taxes creates more jobs, unions are bad, regulations reduce economic growth, and so on). 

The five Republicans on the Supreme Court have obliged by eviscerating campaign finance laws. Their 2010 decision in Citizens United v. Federal Election Commission, along with the broad interpretations given it by several appellate judges (also Republican appointees), has opened the money floodgates.  

Second, wealthy Republicans want to quietly reduce the impact of any laws that might limit their profits, even though they may help struggling whites as consumers or employees. The easiest way to execute this delicate maneuver is to make it harder to sue under such laws.  

Here, too, the five Republicans on the Court have been eager to oblige by tightening requirements for class actions and limiting standing to sue. In their recent Comcast Corp. v. Behrend decision, for example, they threw out $875 million in damages that a group of Philadelphia-area subscribers had sought from the cable giant, reasoning that the subscriber plaintiffs hadn’t proven they constituted a “class” for the purpose of a class action.

Third and finally, wealthy Republicans want to minimize the votes of poor and minority citizens – and further propagate the myth that these people are responsible for the economic problems of struggling whites – through state redistricting and gerrymandering, voter-identification requirements at polling stations, and the use of almost any pretext to purge minority voters from voting lists. 

The five Republicans on the Court obliged last week by striking down a section of the 1965 Voting Rights Act that sets the formula under which states with a long history of discrimination must ask the federal government or a judge for approval before changing their voting procedures. 

The significance of Shelby County, Alabama vs. Holder was made plain Thursday when the Court effectively nullified two cases involving Texas voter laws by sending them back to lower courts to reconsider in light of Shelby. One was a voter identification requirement, enacted in 2011, that a federal judge had rejected on grounds that it imposed a disproportionate burden on lower-income people, many of whom are minorities. The other was a redistricting plan, also rejected by a federal court, in part because it would block minorities from gaining a majority vote in almost all districts. 

But now both are effectively reinstated, as are the efforts of several other states to suppress votes. 

Supreme Court justices are appointed for life in order to ensure their independence from politics. But when it comes to the core political strategy of the Republican Party, the five Republican appointees are, in effect, an extension of the GOP.